RESTRICTED STOCK AGREEMENT
THIS RESTRICTED STOCK AGREEMENT (the "Agreement") dated as of November
26, 1997, between BMJ MEDICAL MANAGEMENT, INC., a Delaware corporation (the
"Company"), and each of the individuals identified on the signature page hereto
(each, a "Stockholder" and collectively, the "Stockholders"). This Agreement is
entered into in connection with and concurrently with that certain Management
Services Agreement effective as of November 1, 1997 (the "Management Services
Agreement") between the Company and New Jersey Orthopedic Associates, P.A., a
New Jersey professional association (the "Medical Group"). Certain capitalized
terms used herein are defined in Section 4 below.
NOW, THEREFORE, in consideration of the mutual covenants contained
herein and other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, and intending to be legally bound hereby, the
Company and each Stockholder (for himself or herself only) hereby agrees as
follows:
1. Purchase and Sale of Restricted Shares; Representations and
Warranties of Stockholder.
(a) Upon execution of this Agreement, the Company shall, pursuant
to Section 4 and Schedule III of the Management Services Agreement, issue to
each Stockholder that number of shares (such shares are referred to herein as
the "Restricted Shares") of common stock, $.001 par value (the "Common Stock"),
of the Company set forth opposite such Stockholder's name on Schedule A attached
hereto. The aggregate shares of Common Stock issued to the Stockholders are
referred to collectively herein as "Restricted Stock." Simultaneously with the
execution and delivery hereof, the Company is delivering to each Stockholder the
certificate(s) representing the Restricted Shares.
(b) In connection with the issuance of the Restricted Shares
hereunder, each Stockholder represents and warrants (as to himself or herself
only) to the Company that:
(i) the Restricted Shares to be issued to such Stockholder
pursuant to this Agreement shall be acquired for such Stockholder's own
account, for investment only and not with a view to, or intention of,
distribution thereof in violation of the 1933 Act, or any applicable
state securities laws, and the Restricted Shares will not be disposed of
in contravention of the 1933 Act or any applicable state securities
laws;
(ii) such Stockholder has generally such knowledge and
experience in business and financial matters
and with respect to investments in securities of privately held
companies so as to enable such Stockholder to understand and evaluate
the risks and benefits of his or her investment in the Restricted
Shares;
(iii) such Stockholder has no need for liquidity in his or her
investment in the Restricted Shares and is able to bear the economic
risk of his or her investment in the Restricted Shares for an indefinite
period of time and understands that the Restricted Shares have not been
registered or qualified under the 1933 Act or any applicable state
securities laws, by reason of the issuance of the Restricted Shares in a
transaction exempt from the registration and qualification requirements
of the 1933 Act or such state securities laws and, therefore, cannot be
sold unless subsequently registered or qualified under the 1933 Act or
such state securities laws or an exemption from such registration or
qualification is available;
(iv) such Stockholder understands that the exemption from
registration afforded by Rule 144 (the provisions of which are known to
such Stockholder) promulgated under the 1933 Act, depends on
satisfaction of various conditions and that, if applicable, Rule 144 may
only afford the basis for sales under certain circumstances and only in
limited amounts;
(v) such Stockholder is an individual (A) whose individual net
worth, or joint net worth with his or her spouse, presently exceeds
$1,000,000 or (B) who had an income in excess of $200,000 in each of the
two most recent years, or joint income with his or her spouse in excess
of $300,000 in each of those years (in each case including foreign
income, tax exempt income and the full amount of capital gains and
losses but excluding any income of other family members and any
unrealized capital appreciation) and has a reasonable expectation of
reaching the same income level in the current year; or such Stockholder
otherwise meets the requirements to be considered an accredited
investor, as defined under the 1933 Act;
(vi) and such Stockholder has had an opportunity to ask
questions and receive answers concerning the terms and conditions of the
offering of the Restricted Shares and has had full access to or been
provided with such other information concerning the Company as he or she
has requested.
(c) This Agreement constitutes the legal, valid and binding
obligation of each Stockholder, enforceable in accordance with its terms, and
the execution, delivery and performance of this Agreement by each such
Stockholder does not and will not conflict with, violate or cause a breach of
any
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agreement, contract or instrument to which such Stockholder is a party or
any judgment, order or decree to which such Stockholder is subject.
(d) As an inducement to the Company to issue the Restricted Shares
to each Stockholder and as a condition thereto, each Stockholder acknowledges
and agrees that:
(i) neither the issuance of the Restricted Shares to such
Stockholder nor any provision contained herein shall affect the right of
the Company to terminate the Management Services Agreement in accordance
with its terms;
(ii) and the Company shall only be obligated to provide to
such Stockholder substantially the same information regarding the
Company that the Company regularly discloses to its other shareholders.
2. Repurchase of Restricted Shares. In the event that the Management
Services Agreement is terminated for any reason prior to the fourth anniversary
of the Commencement Date (as defined therein) (the "Repurchase Event"), the
Company shall have the right (but not the obligation) (the "Repurchase Option"),
to be exercised in its sole discretion, to repurchase all or any portion of the
Restricted Shares (whether held by the Stockholders or one or more of any
Stockholder's Permitted Transferees) pursuant to the terms and conditions set
forth in this Section 2.
(a) The Company may elect to exercise the Repurchase Option and
repurchase all or any portion of the Restricted Shares by delivering written
notice (the "Repurchase Notice") to each Stockholder within ninety (90) days
after the Repurchase Event. The Repurchase Notice shall set forth the number of
Restricted Shares to be repurchased, the aggregate consideration to be paid for
such shares, and the time and place for the closing of the transaction. The
purchase price payable for each Restricted Share shall equal the Fair Market
Value of such share. If the Company decides to repurchase Restricted Shares from
any Stockholder pursuant to this Section 2, then the Company must purchase that
number of Restricted Shares which it has elected to repurchase from all of the
Stockholders pro rata according to the number of shares of Restricted Stock held
by all of the Stockholders at the time of delivery of such Repurchase Notice
(determined as nearly as practicable to the nearest whole share).
(b) The closing of the repurchase of Restricted Shares pursuant to
the Repurchase Option shall take place on the date designated by the Company in
the Repurchase Notice, which date shall not be more than sixty (60) days nor
less than five (5) days after the delivery of the Repurchase Notice. The
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Company shall pay for Restricted Shares to be purchased pursuant to the
Repurchase Option by delivery of a check or wire transfer of funds, in the
aggregate amount of the repurchase price for such shares; provided, however,
that in the event the Medical Group is obligated to pay to the Company any sums
in connection with the repurchase of assets by the Medical Group pursuant to
Section 13.5 of the Management Services Agreement, the total amount of such sums
may be offset by the Company against any amounts owed by the Company to the
Stockholders pursuant to this Agreement (if any such Stockholder is, at such
time, an equity owner of or partner in the Medical Group), such offset amount to
be allocated pro rata among all of the Stockholders who at such time hold equity
of or are partners in the Medical Group. The Company shall be entitled to
require the signature of such Stockholder to be guaranteed and to receive
representations and warranties from such Stockholder regarding (x) such
Stockholder's power, authority and legal capacity to enter into such sale and to
transfer valid right, title and interest in such Restricted Shares, (y) such
Stockholder's ownership of such Restricted Shares and the absence of any liens,
pledges, and other encumbrances on such Restricted Shares and (z) the absence of
any violation, default, or acceleration of any agreement or instrument pursuant
to which such Stockholder or such Stockholder's assets are bound resulting from
such sale.
(c) Notwithstanding anything to the contrary contained in this
Agreement, all repurchases of Restricted Shares by the Company under this
Section 2 shall be subject to applicable restrictions, if any, contained in its
certificate of incorporation, any financing agreement to which the Company is a
party, Federal law or the Delaware General Corporation Law. If any such
restrictions prohibit or otherwise delay the repurchase of Restricted Shares
hereunder which the Company is otherwise entitled or required to make, the
Company may make such repurchases as soon as it is permitted to do so; provided
that in no event shall the Company be permitted to make any such repurchases
more than 180 days after the fourth anniversary of the Commencement Date.
(d) In the event that any Restricted Shares are repurchased pursuant
to this Section 2, such Stockholder and his or her successors and assigns shall,
at the Company's expense, take all reasonable steps to obtain all required
third-party, governmental and regulatory consents and approvals and take all
other reasonable actions necessary to facilitate consummation of such repurchase
in a timely manner.
3. Transfer Restriction; Legend.
(a) Any Permitted Transferee (other than the Company) shall, as a
condition to such transfer, (i) agree to be bound by all of the provisions of
this Agreement applicable to a Stockholder and shall evidence such agreement by
executing and
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delivering to the Company a joinder to this Agreement in form and substance
satisfactory to the Company, and (ii) if such transferee is a shareholder or
employee of the Medical Group, execute a noncompetition agreement in form and
substance satisfactory to the Company (if such transferee is not, as of the date
of such transfer, a party to such an agreement with the Company).
(b) The certificate(s) representing the Restricted Shares will bear
the following legend:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE BEEN
ACQUIRED FOR INVESTMENT AND HAVE NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED, OR ANY APPLICABLE
STATE SECURITIES OR "BLUE-SKY" LAWS. THESE SECURITIES MAY
NOT BE SOLD OR TRANSFERRED IN THE ABSENCE OF SUCH
REGISTRATION OR AN EXEMPTION THEREFROM UNDER SAID ACT OR
LAWS. ADDITIONALLY, THE SECURITIES REPRESENTED BY THIS
CERTIFICATE ARE SUBJECT TO CERTAIN REPURCHASE OPTIONS,
TRANSFER RESTRICTIONS AND CERTAIN OTHER AGREEMENTS SET FORTH
IN A RESTRICTED STOCK AGREEMENT DATED AS OF NOVEMBER 26,
1997, BETWEEN THE STOCKHOLDER AND BMJ MEDICAL MANAGEMENT,
INC. A COPY OF SUCH AGREEMENT MAY BE OBTAINED BY THE HOLDER
HEREOF AT THE COMPANY'S PRINCIPAL PLACE OF BUSINESS WITHOUT
CHARGE."
(c) The restrictions on transfers of Restricted
Shares set forth in this Section 3 shall expire, and shall
be of no further force or effect, upon the consummation of
the initial public offering of the Company's Common Stock
pursuant to the 1933 Act.
4. Registration Rights.
(a) Piggyback Registration. If the Company, at any time after that
date which is six months after the consummation of the initial public offering
of the Common Stock, proposes for any reason to register Primary Shares or Other
Shares under the Securities Act (other than on Form S-4 or Form S-8 promulgated
under the Securities Act or any successor forms thereto), it shall promptly give
written notice to the Stockholders of its intention so to register the Primary
Shares or Other Shares and, upon the written request, given within 15 days after
delivery of any such notice by the Company, of any Stockholder to include in
such registration Registrable Shares held by such Stockholder (which request
shall specify the number of Registrable Shares proposed to be included in such
registration), the Company shall use its best efforts to cause all such
Registrable Shares to be included in such registration on the same terms and
conditions as the securities otherwise being sold in such registration;
provided, however, that if the managing underwriter advises the
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Company in writing that the inclusion of all Registrable Shares requested by the
Stockholders to be included in such registration, together with the inclusion of
all Other Shares, would interfere with the successful marketing (including
pricing) of Primary Shares proposed to be registered by the Company, then the
number of Primary Shares, Registrable Shares and Other Shares proposed to be
included in such registration shall be included in the following order:
(i) first, the Primary Shares;
(ii) second, the Venture Capital Shares requested to be
included in such registration by the Venture Capitalists;
(iii) third, the Lender Securities requested to be included in
such registration by the Lenders; and
(iv) fourth, the Other Shares and the Registrable Shares
requested to be included in such registration by the Stockholders and
the holders of Other Shares (pro rata based on the number of Other
Shares and Registrable Shares held by such holders of Other Shares and
Registrable Shares).
(b) Condition to Registration Obligations. The Corporation shall not
be obligated to effect the registration of the Registrable Shares pursuant to
Section 4(a) above unless the Stockholder executes a power of attorney, custody
arrangement and other documents customary in such transactions and reasonably
required by the managing underwriter thereof prior to the filing of the
registration statement.
(c) Holdback Agreement. If the Company at any time shall register
shares of Common Stock under the Securities Act for sale to the public and
includes in such registration any Registrable Shares beneficially owned by the
Stockholder, the Stockholder shall not sell publicly, make any short sale of,
grant any option for the purchase of, or otherwise dispose publicly of, any
Restricted Shares (other than those Registrable Shares included in such
registration) without the prior written consent of the Company for a period
designated in writing by the underwriters managing such offering to the Company
(and the Company will so notify the holders of Registrable Shares), which period
shall not begin more than 10 days prior to the effectiveness of the registration
statement pursuant to which such public offering shall be made and shall not
last more than 180 days after the effective date of such registration statement.
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(d) Indemnification.
(i) In connection with any registration of Registrable Shares
under the Securities Act pursuant to this Agreement, the Stockholder
shall indemnify and hold harmless the Company, each director of the
Company, each officer of the Company who shall sign such registration
statement, each underwriter, broker or other person acting on behalf of
the holders of Registrable Shares and each person who controls any of
the foregoing persons within the meaning of the Securities Act with
respect to any statement or omission from such registration statement,
any preliminary prospectus or final prospectus contained therein or
otherwise filed with the Commission, any amendment or supplement thereto
or any document incident to registration or qualification of any
Registrable Shares, if such statement or omission was made in reliance
upon and in conformity with written information furnished to the Company
or such underwriter through an instrument duly executed by such holder
of Registrable Shares specifically for use in connection with the
preparation of such registration statement, preliminary prospectus,
final prospectus, amendment, supplement or document.
(ii) In connection with any registration of any Registrable
Shares under the Securities Act pursuant to this Agreement, the Company
shall indemnify and hold harmless the Stockholder against any losses,
claims, damages or liabilities (or actions in respect thereof), to which
the Stockholder may become subject under the Securities Act or
otherwise, insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon an untrue
statement or alleged untrue statement of a material fact contained in
the registration statement under which such Registrable Shares were
registered under the Securities Act, any preliminary prospectus or final
prospectus contained therein or otherwise filed with the Commission, any
amendment or supplement thereto or any document incident to registration
or qualification of any Registrable Shares, or arise out of or are based
upon the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements
therein not misleading, or any violation by the Company of the
Securities Act or state securities or "blue sky" laws applicable to the
Company and relating to action or inaction required of the Company in
connection with such registration or qualification under such state
securities or blue sky laws; provided, however, that the Company shall
not be liable in any such case to the extent that any such loss, claim,
damage, liability or action arises out of or is based upon an untrue
statement or alleged untrue statement or omission or alleged omission
made in said registration statement, preliminary prospectus,
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final prospectus, amendment, supplement or document incident to
registration or qualification of any Registrable Shares in reliance upon
and in conformity with written information furnished to the Company
through an instrument duly executed by the Stockholder.
(e) Information by Stockholder. In the event the Stockholder elects
to sell Registrable Shares pursuant to Section 4(a) above, the Stockholder shall
furnish to the Company such written information regarding the Stockholder and
the distribution proposed by the Stockholder as the Company may reasonably
request in writing and as shall be reasonably required in connection with any
registration, qualification or compliance referred to in this Section 4.
(f) Expenses. All expenses incurred by the Company in complying with
this Section 4, including, without limitation, all registration and filing fees
(including all expenses incident to filing with the NASD), fees and expenses of
complying with securities and "blue sky" laws, printing expenses, fees and
expenses of the Company's counsel and accountants, shall be paid by the Company;
provided, however, that all underwriting discounts and selling commissions
applicable to the Registrable Shares shall not be borne by the Company but shall
be borne by the holders of Registrable Shares in proportion to the number of
Registrable Shares sold by each of them.
5. Definitions.
(a) "Affiliate" means, with respect to any Person, (a) any director,
officer, 10% stockholder or partner of such Person and (b) any other Person
that, directly or indirectly, through one or more intermediaries, controls, or
is controlled by, or is under common control with, such Person. The term
"control" includes, without limitation, the possession, directly or indirectly,
of the power to direct the management and policies of a Person, whether through
the ownership of voting securities, by contract or otherwise.
(b) "Fair Market Value" of each Restricted Share means the average of
the closing prices of the sales of the Common Stock on all securities exchanges
on which the Common Stock may at the time be listed, or, if there have been no
sales on any such exchange on any given day, the average of the last bid and
asked prices on all such exchanges at the end of such day, or, if on any given
day the Common Stock is not so listed, the average of the representative bid and
asked prices quoted in the Nasdaq Stock Market National Market System ("Nasdaq")
as of 4:00 P.M., New York time, or, if on any given day the Common Stock is not
quoted in Nasdaq, the average of the bid and asked prices on such day in the
domestic over-the-counter market as reported by the National Quotation Bureau
Incorporated, or any
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similar successor organization, in each such case averaged over a period of 21
days consisting of the day as of which the Fair Market Value is being determined
and the 20 consecutive trading days prior to such day. If at any time the Common
Stock is not listed on any securities exchange or quoted in Nasdaq or the
over-the-counter market, the Fair Market Value shall be that value jointly
determined by the Stockholder and the Company, provided that if they cannot so
agree, such value shall be determined by a mutually acceptable investment
banking or other qualified firm of national or regional reputation, retained
jointly by the Company and the Stockholder, and all fees, expenses and other
charges of such firm incurred in connection with such determination of Fair
Market Value shall be borne and shared equally by the Company and the
Stockholder. In the event that the parties are unable to agree upon such an
investment banking or other qualified firm within ten (10) days after the date
on which either party may initially propose such a firm, a qualified firm shall
be selected in the following manner:
(i) First, the Stockholder shall send a list of four such
firms, arranged in order of the Stockholder's preference, by written
notice to the Company within seven (7) days after the expiration of the
above referenced 10-day period. If the Stockholder does not furnish such
list to the Company within the required time period, the Company may,
within seven (7) days following expiration of the initial seven-day
period, submit a list of four such firms to the Stockholder.
(ii) Second, the Company (or the Stockholder, as applicable)
shall select, within seven (7) days after receipt of the
above-referenced list, one of the firms identified on such list and
shall give written notice thereof to the other party. If the recipient
of such list does not make any such selection, the firm identified as
the first choice on such list shall be deemed acceptable and agreeable
to each of the parties.
(c) "Internal Revenue Code" means the Internal Revenue Code of 1986,
as the same may be amended or supplemented from time to time, or any successor
statute, and the rules and regulations thereunder, as the same are from time to
time in effect.
(d) "Lender" means any Person that has loaned (prior to the date
hereof) or may lend (at any time hereafter) funds to the Company and in
connection with such lending has obtained or may obtain registration rights.
(e) "Lender Securities" means the shares of Common Stock or any other
securities which by their terms are exercisable or exchangeable for or
convertible into Common Stock
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and securities received in respect thereof, which are held by a Lender and which
have not theretofore been sold to the public pursuant to a registration under
the Securities Act or pursuant to Rule 144.
(f) "Other Shares" means at any time those issued and outstanding
shares of Common Stock that do not constitute Primary Shares or Registrable
Shares.
(g) "Person" shall be construed broadly and shall include, without
limitation, an individual, a partnership, an investment fund, a limited
liability corporation or partnership, a corporation, an association, a joint
stock company, a trust, a joint venture, an unincorporated organization and a
governmental entity or any department, agency or political subdivision thereof.
(h) "Permitted Transferee" means, as to any Stockholder, any
transferee who acquires the Restricted Shares pursuant to a Permitted Transfer
or any other transfer made in accordance with the provisions of this Agreement.
(i) "Permitted Transfer" means, as to any Stockholder, any sale or
transfer of Restricted Shares to (A) the spouse or lineal descendants of such
Stockholder or (B) a trust for the benefit of any of the foregoing.
(j) "Primary Shares" means at any time the authorized but unissued
shares of Common Stock or shares of Common Stock held by the Company in its
treasury.
(k) "Public Sale" means any sale of Restricted Stock to the public
pursuant to an offering registered under the 1933 Act or to the public through a
broker, dealer or market maker pursuant to the provisions of Rule 144 adopted
under the 1933 Act.
(l) "Registrable Shares" means the shares of Common Stock or any other
securities which by their terms are exercisable or exchangeable for or
convertible into Common Stock and any securities received in respect thereof,
which are held by the Stockholders and which have not theretofore been sold to
the public pursuant to a registration statement under the Securities Act or
pursuant to Rule 144.
(m) "Restricted Shares" has the meaning set forth in Section 1(a). The
Restricted Shares will continue to be Restricted Shares in the hands of any
holder (other than the Company and any transferees in a Public Sale), and except
as otherwise provided herein, each such other holder of the Restricted Shares
will succeed to all rights and obligations attributable to a Stockholder as the
holder of the Restricted Shares hereunder. The Restricted Shares will also
include
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shares of the Company's capital stock issued with respect to the Restricted
Stock by way of a stock split, stock dividend or other recapitalization.
(n) "Venture Capitalists" means ▇▇▇▇▇▇ ▇▇▇▇▇▇ and those venture
capital firms that have acquired, prior to the date hereof, and may acquire, at
any time hereafter, securities of the Company and in connection with such
acquisition have obtained or may obtain registration rights.
(o) "Venture Capital Shares" means the shares of Common Stock or any
other securities which by their terms are exercisable or exchangeable for or
convertible into Common Stock and any securities received in respect thereof,
which are held by a Venture Capitalist and which have not theretofore been sold
to the public pursuant to a registration statement under the Securities Act
pursuant to Rule 144.
(p) "1933 Act" means the Securities Act of 1933, as the same may be
amended or supplemented from time to time, or any successor statute, and the
rules and regulations thereunder, as the same are from time to time in effect.
6. Indemnification.
(a) The Company shall indemnify, defend and hold harmless each
Stockholder against all liability, loss or damage sustained by such Stockholder,
together with all reasonable costs and expenses related thereto (including
reasonable legal fees and expenses), relating to or arising from the untruth,
inaccuracy or breach of any of the representations, warranties or agreements of
the Company contained in this Agreement.
(b) Each Stockholder shall indemnify and hold harmless the Company
against all liability, loss or damage, together with all reasonable costs and
expenses related thereto (including reasonable legal fees and expenses),
relating to or arising from the untruth, inaccuracy or breach of any of the
representations, warranties or agreements of such Stockholder contained in this
Agreement.
7. General Provisions.
(a) Transfers in Violation of Agreement. Any sale, transfer,
assignment or other disposition (whether with or without consideration and
whether voluntarily or involuntarily or by operation of law) (each, a
"Transfer") or attempted Transfer of any Restricted Shares in violation of any
provision of this Agreement shall be void, and the Company shall not record such
Transfer on its books or treat any purported transferee of such Restricted
Shares as the owner of such stock for any purpose.
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(b) Binding Effect of Management Services Agreement. The Stockholder
hereby agrees to be bound by the provisions of Sections 13.4(b) and 13.6 of the
Management Services Agreement, which provisions such Stockholder has reviewed.
(c) Severability. It is the desire and intent of the parties hereto
that the provisions of this Agreement be enforced to the fullest extent
permissible under the laws and public policies applied in each jurisdiction in
which enforcement is sought. Accordingly, if any particular provision of this
Agreement shall be adjudicated by a court of competent jurisdiction to be
invalid, prohibited or unenforceable for any reason, such provision, as to such
jurisdiction, shall be ineffective, without invalidating the remaining
provisions of this Agreement or affecting the validity or enforceability of this
Agreement or affecting the validity or enforceability of such provision in any
other jurisdiction. Notwithstanding the foregoing, if such provision could be
more narrowly drawn so as not to be invalid, prohibited or unenforceable in such
jurisdiction, it shall, as to such jurisdiction, be so narrowly drawn, without
invalidating the remaining provisions of this Agreement or affecting the
validity or enforceability of such provision in any other jurisdiction.
(d) Entire Agreement. This Agreement, those documents expressly
referred to herein and other documents of even date herewith embody the complete
agreement and understanding among the parties hereto with respect to the subject
matter hereof and supersede and preempt any prior understandings, agreements or
representations by or among the parties, written or oral, which may have related
to the subject matter hereof in any way.
(e) Relationship Among Stockholders. No Stockholder shall have any
responsibility for any breach of this Agreement by any other Stockholder or for
any representations, warranties, acts or omissions of any other Stockholder.
Each Stockholder is entering into this Agreement for and on behalf of such
Stockholder only, and no partnership, joint venture, unincorporated association
or any other legal entity is intended to be formed by or among the Stockholders
as a result of or in connection with this Agreement. The parties have chosen to
execute a single instrument for convenience only, and this Agreement shall be
construed as separate and several agreements among the Medical Group, the
Company and each of the respective Stockholders for all purposes. This Agreement
may be executed in separate counterparts.
(f) Counterparts. This Agreement may be executed in separate
counterparts, each of which is deemed to be an original and all of which taken
together constitute one and the same agreement.
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(g) Successors and Assigns. Except as otherwise provided herein, this
Agreement shall bind and inure to the benefit of and be enforceable by each
Stockholder, the Company and their respective successors, permitted assigns,
heirs, representatives and estate, as the case may be (including subsequent
holders of Restricted Stock); provided, however, that the rights and obligations
of any Stockholder under this Agreement shall not be assignable except in
connection with a Permitted Transfer of Restricted Shares hereunder.
(h) Governing Law. This Agreement shall be governed by and construed
in accordance with the laws of the State of Delaware, without giving effect to
any choice of law or conflicting provision or rule (whether of the State of
Delaware or any other jurisdiction), that would cause the laws of any
jurisdiction other than the State of Delaware to be applied. In furtherance of
the foregoing, the internal law of the State of Delaware will control the
interpretation and construction of this agreement, even if under such
jurisdiction's choice of law or conflict of law analysis, the substantive law of
some other jurisdiction would ordinarily apply.
(i) Remedies. Each of the parties to this Agreement shall be entitled
to enforce its rights under this Agreement specifically to recover damages and
costs (including reasonable attorneys' fees) for any breach of any provision of
this Agreement and to exercise all other rights existing in its favor. The
parties hereto agree and acknowledge that money damages may not be an adequate
remedy for the Company in the event of a breach of the provisions of this
Agreement by any Stockholder and that the Company may, in its sole discretion,
apply to any court of law or equity of competent jurisdiction for specific
performance and/or other injunctive relief (without posting any bond or deposit)
in order to enforce or prevent any violations of the provisions of this
Agreement.
(j) Amendment and Waiver. The provisions of this Agreement may be
amended and waived only with the prior written consent of the Company and the
Stockholders and no course of conduct or failure or delay in enforcing the
provisions of this Agreement shall be construed as a waiver of such provisions
or affect the validity, binding effect or enforceability of this Agreement or
any provision hereof; provided, however, that the Company may, without any
Stockholder's consent, amend Schedule A hereto upon consummation of a Permitted
Transfer of Restricted Shares hereunder by any Shareholder to reflect the then
current ownership of the Restricted Stock.
(k) Notices. Any notice provided for in this Agreement must be in
writing and must be either personally delivered, transmitted via telecopier,
mailed by first class mail (postage prepaid and return receipt requested) or
sent by nationally-recognized overnight courier service (charges
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prepaid) to the recipient at the address below indicated or at such other
address or to the attention of such other person as the recipient party has
specified by prior written notice to the sending party. Notices will be deemed
to have been given hereunder and received when delivered personally, when
received if transmitted via telecopier, three business days after deposit in the
U.S. mail and one business day after deposit with a nationally-recognized
overnight courier service.
(i) If to the Company, to:
BMJ Medical Management, Inc.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇, M.D., President
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇;
with a copy to:
▇'▇▇▇▇▇▇▇▇ Graev & Karabell, LLP
▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. Held, Esq.
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇; and
(ii) If to any Stockholder, to his or her address set forth on
the signature page hereto beneath his or her name;
with copies to:
New Jersey Orthopedic Associates, P.A.
Freehold Office Plaza
BLDG 1
▇▇▇▇▇ ▇▇▇▇▇ ▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇▇, M.D.
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇; and
Brach, Eichler, ▇▇▇▇▇▇▇▇▇, Silver, ▇▇▇▇▇▇▇▇▇,
Hammer & Gladstone
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇, Esq.
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇.
(l) Business Days. If any time period for giving notice or taking
action hereunder expires on a day which is a Saturday, Sunday or holiday in the
State of New Jersey, the time period for giving notice or taking action shall be
automatically
-14-
extended to the business day immediately following such Saturday,
Sunday or holiday.
(m) Attorneys' Fees. In the event of any dispute or controversy
arising out of or relating to this Agreement, the prevailing party shall be
entitled to recover from the other party all costs and expenses, including
attorneys' fees and accountants' fees, incurred in connection with such dispute
or controversy.
(n) Descriptive Headings. The descriptive headings of this Agreement
are inserted for convenience only and do not constitute a part of this
Agreement.
(o) Construction. Where specific language is used to clarify by
example a general statement contained herein, such specific language shall not
be deemed to modify, limit or restrict in any manner the construction of the
general statement to which it relates. The language used in this Agreement shall
be deemed to be the language chosen by the parties to express their mutual
intent, and no rule of strict construction shall be applied against any party.
(p) Nouns and Pronouns. Whenever the context may require, any pronouns
used herein shall include the corresponding masculine, feminine or neuter forms,
and the singular form of nouns and pronouns shall include the plural and
vice-versa.
* * * *
IN WITNESS WHEREOF, the parties hereto have executed this
Restricted Stock Agreement as of the date first written above.
COMPANY
BMJ MEDICAL MANAGEMENT, INC.
By:
--------------------------
Name:
Title:
STOCKHOLDERS
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▇▇▇▇ ▇▇▇▇▇▇▇▇, M.D.
Address for notices:
-----------------------------
-----------------------------
-----------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, M.D.
Address for notices:
-----------------------------
-----------------------------
-----------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, M.D.
Address for notices:
-----------------------------
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MEDICAL GROUP
ACCEPTED AND AGREED AS TO PARAGRAPH 3
NEW JERSEY ORTHOPEDIC ASSOCIATES, P.A.
By:
------------------------------
Name:
Title: